Citation Nr: 9918458
Decision Date: 07/02/99 Archive Date: 07/15/99
DOCKET NO. 95-20 647A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Whether new and material evidence has been received to reopen
a claim for service connection for an acquired psychiatric
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Orfanoudis, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1980 to June 1982.
This appeal comes before the Board of Veterans' Appeals
(Board) from a January 1995 rating decision of the New
Orleans, Louisiana, Regional Office (RO) of the Department of
Veterans Affairs (VA).
Entitlement to service connection for a psychiatric disorder
was denied by the Board in July 1993.
FINDINGS OF FACT
1. The July 1993 Board decision, which denied entitlement to
service connection for an acquired psychiatric disorder, is
final.
2. The evidence submitted subsequent to the July 1993 Board
decision, bears directly and substantially on the specific
matter of the veteran's claim of entitlement to service
connection for an acquired psychiatric disorder.
CONCLUSION OF LAW
The evidence received since the July 1993 Board decision,
which denied entitlement to service connection for an
acquired psychiatric disorder, is new and material and the
veteran's claim has been reopened. 38 U.S.C.A. §§ 5108, 7104
(West 1991); 38 C.F.R. § 3.156 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be granted for a disease or injury
incurred in or aggravated by active duty. 38 U.S.C.A. §§
1110, 1131 (West 1991). Service connection may also be
granted for certain chronic diseases, including a psychosis,
if manifested to a degree of 10 percent disabling or more
within one year after separation from service. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307,
3.309 (1998).
If a chronic disease is shown in service, subsequent
manifestations of the same chronic disease at any later date,
however remote, may be service connected, unless clearly
attributable to intercurrent causes. 38 C.F.R. § 3.303(b)
(1998). Continuity of symptoms is required where the
condition in service is not, in fact, chronic or where
diagnosis of chronicity may be legitimately questioned. 38
C.F.R. § 3.303(b) (1998).
In addition, service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(1998).
The evidence of record at the time of the July 1993 Board
decision is briefly summarized. The service medical records
show that in February 1982 the veteran was seen at the mental
health clinic where he was given a complete battery of tests,
to include a Minnesota Multiphasic Personality Inventory.
The records showed that five days later, in a subsequent
visit, it was indicated that there was no evidence of any
deficit in psychomotor functioning. It was also reported
that the Minnesota Multiphasic Personality Inventory was
suggestive of a negative self-image, irritability, and a poor
capacity for delay or frustration.
A March 1982 certification of psychiatric evaluation was
received in December 1981. At that time the diagnoses were
adjustment disorder with mixed disturbance of emotions and
conduct, moderate, and passive aggressive personality
disorder, passive type, chronic moderate. The veteran's DD
214 shows that he was discharged from the Air Force due to a
personality disorder.
The veteran was seen by a social worker in April 1982. He
indicated that he was frustrated because he did not have his
lieutenant's trust back. At the time of the separation
examination conducted in April 1982, the veteran gave a
history of depression and worry. The examining physician
reported that he had been under treatment by the mental
health clinic for job dissatisfaction and that he had denied
any family history of psychosis. The examination clinically
evaluated his psychiatric condition as normal.
The veteran was seen at a VA clinic in December 1982 for his
heart and blood. He stated that he had bad memories of the
"army" and felt he was railroaded out of the service.
Subsequently, he received intermittent treatment at V
facilities for various disorders, to include psychiatric
complaints. In December 1984 he was referred to a state
mental health facility. He was seen in September 1986 and
requested a psychiatrist.
In July 1987, the Board denied service connection for a
psychiatric disorder. At that time the Board found that a
psychiatric disorder was not present in service or at the
time of discharge.
In December 1986 he was evaluated at a VA mental health
clinic. At that time the veteran reported difficulty getting
along with others. It was indicated that he did not have
evidence of an overt psychosis, hallucinations, thought
insertion or thought broadcasting. It was indicated that he
was depressed. The impression was a character disorder.
He continued to be treated at VA and private facilities. The
veteran was hospitalized at a VA facility in February 1990.
The discharge diagnoses include schizophrenia and mixed
personality disorder.
In July 1993, the Board determined that new and material
evidence had been submitted to reopen the veteran's claim.
Thereafter, the Board found that there was no evidence that
an acquired psychiatric disorder was manifested during the
veteran's active service. That decision is final. 38
U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 1998).
However, the veteran may reopen his claim by submitting new
and material evidence. New and material evidence means
evidence not previously submitted to agency decision-makers
which bears directly and substantially upon the specific
matter under consideration, which is neither cumulative nor
redundant, and which by itself or in connection with evidence
previously assembled is so significant that it must be
considered in order to fairly decide the merits of the claim.
See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); 38 C.F.R.
§ 3.156(a) (1998).
"New evidence" is evidence that is not merely cumulative of
other evidence on the record. Barnett v. Brown, 8
Vet.App. 1, 5 (1995). See also Cox v. Brown, 5 Vet.App. 95,
98 (1993). Evidence is "material" where it is relevant to
and probative of the issue at hand. Id.
VA is directed to consider the evidence that has been added
to the record since the last final disallowance of the claim
on any basis, including a decision refusing, because of a
lack of new and material evidence, to reopen a previously and
finally disallowed claim. Evans v. Brown, 9 Vet. App. 273,
285 (1996). The evidence must be reviewed in light of the
pertinent statutes and regulations. Wilkinson v. Brown, 8
Vet. App. 263, 268 (1995).
The evidence received subsequent to the last final decision
is presumed credible for the purposes of reopening the
appellant's claim unless it is inherently false or untrue, or
it is beyond the competence of the person making the
assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995);
Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also
Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995).
The evidence received subsequent to the July 1993 Board
decision includes VA and private treatment records dated from
1986 to 1994 which show that the veteran was treated for
psychiatric complaints.
The veteran was evaluated by a private psychiatrist in
February 1992. At that time the diagnosis was paranoid
schizophrenia and dysthymia. The clinical history indicated
that the onset of symptom occurred in approximately 1980.
The veteran also testified at a hearing before a member of
the Board sitting at New Orleans, Louisiana in December 1997.
He indicated that he was treated at the VA outpatient clinic
for his psychiatric disorder from 1982 until about 1993. The
veteran indicated that he had been having symptoms associated
with his psychiatric disorder during his period of active
service in the Air Force.
The veteran also testified before a Board Member during a
videoconference hearing in February 1999. He indicated that
while in service, he was experiencing visions while sleeping,
but that he was told he was just young and he was having
problems being away from home. He stated that subsequent to
service, he was treated from December 1982 until the present
and that many of the symptoms were similar to those
experienced in service.
The Board finds that the foregoing evidence is new because it
is not cumulative. Moreover, it is material because these
medical records and the testimony are probative of whether
the acquired psychiatric disorder may be the result of the
veteran's active service. The hearing testimony provides a
detailed description of the inservice psychiatric symptoms
and continuity of these symptoms. Therefore, the Board finds
that the veteran's claim of entitlement to service connection
for an acquired psychiatric disorder is reopened.
ORDER
New and material evidence having been received, the veteran's
claim of entitlement to service connection for an acquired
psychiatric disorder is reopened.
REMAND
Having reopened the claim for entitlement to service
connection for an acquired psychiatric disorder, the case
must now be reviewed by the RO. In Elkins v. West, 12 Vet.
App. 209 (1999) the United States Court of Appeals for
Veterans Claims held that that in making a determination as
to whether new and material evidence has been submitted to
reopened a previously denied final decision, a three step
process is required. It must first be determined whether new
and material evidence has been submitted. If new and
material evidence has been submitted, it must be determined
whether, immediately upon reopening, the claim is well
grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). If
the claim is well grounded, the merits of the claim will be
evaluated after the duty to assist under 38 U.S.C.A.
§ 5107(b) (West 1991) has been fulfilled.
The service medical records reflect that the veteran was
evaluated for psychiatric symptoms, which resulted in
discharge from the army due to a personality disorder.
Following service beginning in 1984 he was evaluated for
psychiatric complains at VA and private facilities. The
current diagnosis is schizophrenia.
The evidence indicates that the veteran was hospitalized at a
VA facility in December 1991. During his hearing he
indicated that he had been receiving disability benefits from
the Social Security Administration (SSA) since approximately
1986. These records are not on file. In view of the
foregoing, the Board finds that additional development is
required prior to further adjudication of this matter.
Accordingly, the case is REMANDED to the RO for the following
development:
1. The RO should furnish the veteran the
appropriate release of information forms
in order to obtain copies of any
additional VA and private medical
records, which are not on record with
regard to treatment for his acquired
psychiatric disorder since his release
from active duty, to include current
treatment. The RO should then obtain all
records, which are not on file. The RO
should inform the veteran that he has the
opportunity to submit any additional
evidence and arguments in support of his
claim. Quarles v. Derwinski, 3 Vet.
App. 129, 141 (1992).
2. The RO should request copies of all
records, including the December 1991
hospital summary from the VA facility at
Gulfport and any additional treatment
records from the VA facility in New
Orleans covering the period from August
1994 to the present.
3. The RO should take the appropriate
action in order to obtain a copy of the
SSA decision awarding disability benefits
and the evidence on which that decision
was based.
4. A VA examination should be conducted
by a psychiatrist in order to determine
the nature, severity, and etiology of any
psychiatric disorder. All testing deemed
necessary should be performed. The
claims folder and a copy of this Remand
should be made available to the examiner
in conjunction with the examination.
Following the examination it is requested
that the examiner render an opinion as
whether it is as least as likely as not
that any psychiatric disorder diagnosed
is related to the inservice complaints
and findings. A complete rational for
any opinion expressed should be included
in the examination report.
5. Following any additional development
deemed appropriate, the RO should
readjudicate the issue in appellate
status.
Thereafter, if the benefit sought is not granted, a
Supplemental Statement of the Case, which includes the
pertinent law and regulations regarding a claim service
connection benefits, should be issued to the veteran and his
representative and they should be provided an opportunity to
respond. The claims folder should then be returned to the
Board for further review, as appropriate.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
ROBERT P. REGAN
Member, Board of Veterans' Appeals